Finally, the DOJ stops defending DOMA

The statement is quite interesting, and I invite everyone to read it. I am especially encouraged to see that the DOJ has informed Congress of their decision, and offered them the ability to defend DOMA instead, sidestepping the troubling Standing issue currently facing California's Prop 8 challenge.

Just because I don't remember what DOMA was, here is the blurb paragraph for those that don't want to click a link:

Quote:

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman

"Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court."

So... someone tell me in layman's terms what this means?

EDIT: "We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. "

What does this mean in a post-Obama admin, say 2012 should the Republicans run someone not a moron as unlikely as that seems?

It is unlikely to have any concrete effect. When this gets up to the SCOTUS I don't think it is going to matter what the Solicitor General says. That said it is an encouraging development from a momentum perspective.

"Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court."

So... someone tell me in layman's terms what this means?

Sounds to me like they will enforce it until congress or the courts strike it down, but their lawyers will stop claiming that it is constitutional.

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President ’ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

What does this mean in a post-Obama admin, say 2012 should the Republicans run someone not a moron as unlikely as that seems?

It is unlikely to have any concrete effect. When this gets up to the SCOTUS I don't think it is going to matter what the Solicitor General says. That said it is an encouraging development from a momentum perspective.

So the Obama admin is making a largely symbolic gesture that has no real force now that external factors have made it politically safe to do so?

So the president, through the DOJ, is claiming that DOMA is unconstitutional but will continue to represent the government in court?

That's right, so the courts will have to appoint an amicus or intervener to defend the law. So the case will have three parties: the plaintiffs (against DOMA), the DOJ (against DOMA) and the amicus/interveners (for DOMA). Each will be able to file briefs and participate in oral arguments.

What does this mean in a post-Obama admin, say 2012 should the Republicans run someone not a moron as unlikely as that seems?

It is unlikely to have any concrete effect. When this gets up to the SCOTUS I don't think it is going to matter what the Solicitor General says. That said it is an encouraging development from a momentum perspective.

So the Obama admin is making a largely symbolic gesture that has no real force now that external factors have made it politically safe to do so?

I'm shocked.

Actually, not defending it in court is a pretty significant gesture. I suspect the difference will be that administratively they will still abide by DOMA in things like IRS etc. That is until Congres or the Court changes the law.

I've said it once and I'll say it again: The President doesn't care for gay people, otherwise he'd be more vocal.

I suspect that personally he thinks LGBT people should be treated just like everyone else, but he's clearly not willing to risk political capital over it. Otherwise he would've pushed for DADT/DOMA repeal as soon as he took office (like he said he would during his campaign) rather than waiting for the momentum to turn his way. I'm not saying his way isn't practical, but it's not exactly indicative of someone who's passionate about the issue. He's only passionate about it when he needs LGBT folks to come out and vote for him.

Oh, there's no question that he's spending political capital on this. There's much less to the substance of the decision than meets the eye, but the headline is huge. I consider this another step on the way to Obama's inevitable endorsement of marriage equality. I hope he gets to that sooner rather than later.

Oh, there's no question that he's spending political capital on this. There's much less to the substance of the decision than meets the eye, but the headline is huge. I consider this another step on the way to Obama's inevitable endorsement of marriage equality. I hope he gets to that sooner rather than later.

Considering how the latest polls seem to show that he's trending with the majority, I don't see how much political capital this is going to cost him.

Oh, there's no question that he's spending political capital on this. There's much less to the substance of the decision than meets the eye, but the headline is huge. I consider this another step on the way to Obama's inevitable endorsement of marriage equality. I hope he gets to that sooner rather than later.

Considering how the latest polls seem to show that he's trending with the majority, I don't see how much political capital this is going to cost him.

I doubt there's a single person who would have voted for him but for this decision. That said, politicians don't like to do anything that appears "controversial" if they don't have to. And except with respect to his run for President (and that is a HUGE "except") Obama is one of the most cautious politicians around.

He's just like any other politicians...it's his "job" and he doesn't want to lose it. He's the most powerful man in the world yet too weak to "Do the right thing".

I've been disappointed with Obama on a range of issues, but if he can get from point A to point B, even if the method seems fairly wishw-washy, then great.

"The Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation" may not make a great t-shirt, but that's politics.

Oh, there's no question that he's spending political capital on this. There's much less to the substance of the decision than meets the eye, but the headline is huge. I consider this another step on the way to Obama's inevitable endorsement of marriage equality. I hope he gets to that sooner rather than later.

Considering how the latest polls seem to show that he's trending with the majority, I don't see how much political capital this is going to cost him.

I doubt there's a single person who would have voted for him but for this decision. That said, politicians don't like to do anything that appears "controversial" if they don't have to. And except with respect to his run for President (and that is a HUGE "except") Obama is one of the most cautious politicians around.

True, and he was so much of an underdog outside shot when he ran for President he must have felt like he was playing with house money the entire time.

True, and he was so much of an underdog outside shot when he ran for President he must have felt like he was playing with house money the entire time.

I always assumed he never seriously thought he was going to win in 2008. I figured he was just running to get his name out there for a future run, or maybe show well and get a VP bid, and things just snowballed.

In reading more, I'm finding DOJ's position quite nuanced. Essentially they're asserting that DOMA passes Rational Basis review (hence why they defended it in District Court) but not heightened scrutiny. More importantly though, they've endorsed the view that heightened scrutiny is appropriate in such cases.

While I don't agree, I can respect such a position, and if I recall correctly, it is only since the case went to the 2nd Circuit that the argument over the appropriate standard of review has come up.

Would it REALLY be political suicide to give gays legal equality? Would it really be political suicide to shut down Guantanamo bay? Wouldn't the ends justify the "political loss"?

The US constitution creates a separation of powers. The President doesn't get to just wave his magic wand and get everything he wants.

The "ends" don't justify the "political loss" if the result means expending the political capital but still not getting the desired result. Expending political capital can mean not accomplishing other things, which you actually did have a chance of getting.

So I suppose that gay couple in the military are going to have to wait for their benefits until it is actually overturned?

Yes. Obama took something of an intermediate path. He could have simply decided that the law is unconstitutional and refused to enforce it. Then the ball would be in DOMA supporters' court to sue for a temporary injunction while the inevitable litigation was pending. Many Presidents have refused to enforce laws they believed to be unconstitutional and the Supreme Court has endorsed the idea that the President may properly do so.

What factors exactly should go into the President's decision to: defend a law he believes to be unconstitutional in court and enforce a law he believes to be unconstitutional, are not a matter of black letter law but tradition and a hotly contested one at that.

In my personal opinion there is a stronger obligation for the President who actually signs a piece of legislation than one who inherits it or has it passed over his veto.

So I suppose that gay couple in the military are going to have to wait for their benefits until it is actually overturned?

That's going to be some fat BAH.

I had to google BAH. I frankly doubt we're talking about many people, really. But for those few people, it really matters.

Usual BAH differential is something like $500/mo or so depending on grade, so back BAH will end up being a nice tax free payment.

Oh, .mil > english translation - BAH = Basic Allowance for Housing, basically the one pay differential you get for being married vs being single. There'll be others like medical care availability, commissary privledges for the spouse, etc, but those are hard to quantify.

He's only passionate about it when he needs LGBT folks to come out and vote for him.

Yes. And he's absolutely right to do it. He knows we're going to vote for him anyway. Someone who isn't passionate about equality but at least comes down on the right side sometimes is by far preferable to the openly bigoted candidates of the right.